Industries Exempt Wholesale Generators (EWG)
The statutory definition of an EWG requires that an EWG be exclusively in the business of owning or operating, or both owning and operating, all or part of one or more eligible facilities and selling electric energy at wholesale. Read literally, this requirement appears to prohibit other activities that may be a common or appropriate part of the business of wholesale generation and sales. The Commission recognized early on that a literal reading of the exclusivity requirement was inconsistent with the reality of this business, and it has approved a long list of incidental activities that are deemed to be consistent with the exclusivity requirement. This consistency arises from the fact that the activities do not constitute a separate line of business but rather are simply incidental to the business of wholesale generation and sales.
Companies that propose to engage in activities not specifically mentioned in the definition of an EWG should research the Commissionís cases to determine whether the Commission has previously approved the activities in question. To the extent that there are no cases on point, the company should develop its own theories as to why the activity should nevertheless be considered to be an allowable incidental activity and present them in the EWG certification. Companies in this situation are encouraged to consult with Commission staff.
The following is a list of Commission cases approving various incidental activities. These cases deal with some of the more common incidental activities, and the list is thus not comprehensive. In addition, approved incidental activities are frequently subject to certain conditions or restrictions. It is thus important to consult the Commissionís cases to determine whether a proposed incidental activity is fully consistent with Commission requirements.
- Selkirk Cogen Partners, L.P., 69 FERC ∂ 61,037 (1994) (sales of excess fuel supplies);
- UGI Dev. Co., 89 FERC ∂ 61,192 (1999) (trading emissions allowances);
- Southern Elec. Wholesale Generators, Inc., 66 FERC ∂ 61,264 (1994) (facility development activities);
- NRG Northeast Generating LLC, 88 FERC ∂ 61,190 (1999) (ownership and operation of landfill for disposal of coal combustion by-products from present and future EWG operations);
- Application of Keyspan-Ravenswood, Inc. for Determination of Exempt Wholesale Generator Status, Docket No. EG99-166-000 (June 9, 1999) (granted by KeySpan-Ravenswood, Inc., 88 FERC ∂ 62,073 (1999)) (ownership of oil storage and transportation facilities that will be used by an affiliate to provide oil to the EWG and to third parties);
- Entergy Power Marketing Corp., 73 FERC ∂ 61,063 (1995) (wholesale power marketing);
- Sithe Framingham LLC, 83 FERC ∂ 61,106 (1998) (sale of ancillary services);
- Richmond Power Enter., L. P., 62 FERC ∂ 61,157 (1993) (sale of generation byproducts such as steam and fly ash);
- Killingholme Generation Ltd., 90 FERC ∂ 61,194 (2000) (certain leases of property);
- Duquesne Power, LP, 106 FERC ∂ 61,104 (2004) (purchase and sell congestion revenue rights);
- CNG Power Services Corp., 71 FERC ∂ 61,026 (1995) (reassign excess transmission capacity).